There still continues to be considerable ambiguity in particular work situations, as to whether or not illegal sexual harassment is occurring. For assessing the existence of a hostile work environment the courts typically examine questions such as:
• How frequent and severe is the behavior?
• Is the behavior threatening or humiliating?
• Is there interference with an employee’s work performance?
Despite the legislation against it and all the court decisions, sexual harassment remains a problem in the workplace, and HRM personnel and all others responsible for employment policy must develop policies to prevent its occurrence. In addition to establishing a written policy forbidding harassment,
organizations must communicate the policy and train employees. Further, efforts should include
establishment of an effective complaint procedure and the investigation of all claims in a timely manner.
Finally, managers should take remedial action to correct past harassment. While sometimes the emphasis seems to focus on laws and defensive measures, the effective HRM function knows that a proactive approach is the way to go. This proactive approach can begin with the organization updating and strengthening their anti-harassment policies to include the following components (Casey, 1999):
• Specific definitions and prohibition of sexual harassment;
• Formats for informing all employees of the sexual harassment policy;
• Strong prohibitions of retaliation for reporting allegations of harassment;
• Multiple channels for making complaints;
• Assurances of prompt investigations and appropriate remedial actions;
• Provisions for confidentiality and privacy.
ORGANIZATIONAL PRACTICES AND RESPONSES TO AVOID
Conduct Regular Self-Analysis and Document Decisions
An organization should regularly conduct a self-analysis to examine the status of disabled, minority, and female employees and document HRM decisions. For instance, the organization can develop and
regularly update special logs on a variety of HRM decisions (i.e., employee discipline/discharge
decisions). The nature of any HRM decision, and the rationale for it, should be clearly documented. This information allows the organization to identify areas in which disparate impact or disparate treatment may be occurring and provides the basis for a defense of organization policies in discrimination suits.
Both the EEOC and OFCCP have certain reporting requirements. Organizations that conduct a regular self-analysis and have a sound HRM information system in place do not find it difficult to comply with these requirements. Performance appraisal is one important type of documentation. As will be noted in Chapter 8, there are many good reasons for conducting appraisals, only one of which is to provide documentation in case of a lawsuit.
In either case, the legal reason is an important one. In a discrimination case the generic charge is that the employer has based a decision in whole or in part on a non-job-related characteristic (age, sex, race, religion, and so on). The employer’s generic defense is that it had a job-related reason for its decision.
This defense is much easier to establish if the employer has undertaken a regular self-analysis and can provide written documentation to support its claim.
Develop and Communicate Written EEO Policies
All organizations should develop formal, written policies concerning EEO. However, policies are effective only to the extent that they are understood by employees. Just stating that the organization is committed to a discrimination-free work environment is not enough. In this policy, specific behaviors that are unacceptable must be identified. The more explicit these unacceptable behaviors, the less chance of misinterpretation later on.
Organizations should focus on communicating to employees their commitment to a discrimination-free work environment. For instance, all employees need to be instructed in what sexual harassment is, how to stop it before it becomes a problem, and what to do if it does become a problem.
The organization should make sure that EEO policies are displayed widely and prominently throughout the company. Perhaps one of the best ways to avoid EEO problems is to develop and provide special training programs to transmit knowledge of EEO issues and the organization’s EEO policies. The HRM function should provide regular updates on EEO and other labor issues to executives, managers and front-line supervisors, and other employees, since this area of law is in constant flux (“Washington
Scorecard,” 1994, p. 4). The Supreme Court regularly decides cases that affect HRM practice. Although managers can try to read periodicals or search the Web to obtain current information, most find their everyday demands too taxing to allow time for this. Training managers about how to deal with
discrimination (i.e., sexual harassment) charges and what responsibility they have to the individual and the organization decreases the likelihood of opening the organization up to potential liability. Regular, focused training sessions conducted by the HRM function are the most efficient method of
communicating this information to the organization’s employees.
Ensure Employment Procedures Are Objective and Job-Related
Employment decisions about hiring, firing, promoting, or providing benefits to employees must be objective and job-related. For instance, major sources of potential lawsuits are the application and interview phases of the hiring process. The general rule is that organizations should ask only for information that is related to job performance. For example, an interviewer should not ask about an applicant’s religious affiliation, although he or she may ask if a person can work on specific days of the week. Similarly, an interviewer can ask if the applicant is capable of performing the essential physical aspects of the job (preferably specifically listed), but asking general questions about health would
probably be interpreted as a violation of the ADA. Testing procedures used to hire employees should be validated using techniques consistent with the EEOC’s Uniform Guidelines. When decisions are based on performance evaluations of employees, the procedures used to assess performance should be as objective and directly related to the job as possible. Job analysis should be used to determine the important aspects of job performance. Performance should be assessed by persons who have been trained in performance-rating techniques and have had adequate time to observe the performance of the individual(s) being rated. (Chapter 8 discusses a good performance appraisal system.)
Develop a Grievance Procedure/Complaint Resolution Process
Every organization should establish a process for the internal resolution of EEO and other types of employee complaints. This means that an employer should have a formal grievance procedure that employees can use to deal with possible cases of discrimination. In cases of discharges, promotions, or sexual, racial, ethnic, or religious harassment, the availability of formal grievance procedures often aids in resolving complaints of discrimination so that the EEOC’s involvement is not necessary. It is much less expensive to resolve these concerns if the EEOC, OFCCP, and legal counsel are not involved. More importantly, employee satisfaction and mo-
rale can be improved when employees are able to pass along their concerns to upper-level management.
Be Proactive
If evidence of discrimination exists, the organization should be proactive in developing policies to correct the situation. These plans should be consistent with guidelines set forth by the EEOC and the OFCCP. Employees (disabled, minority and female) should be involved in the process of developing these plans. Formally bringing employees into the process can provide useful insights and information about how best to recruit and retain disabled, minority, and female employees. Organizations should take into account the Supreme Court decisions like Steelworkers v. Weber (1979). In that case, the Court ruled that voluntary quota systems are acceptable to the extent that employers do the following
(Kleinman and Faley, 1988):
• Avoid quota systems when no evidence of past discrimination exists.
• Develop plans that do not require the discharge of or have other significant ill effects on majority workers.
• Avoid setting minority quotas of greater than 50 percent.
• Develop plans that are temporary in nature and will end once the negative effects of past discrimination are corrected.
Be Honest
Often, employees will not file an EEO complaint unless they think they have been mistreated.
Perceptions of mistreatment often result from situations in which employees’ or applicants’ expectations have not been met. Therefore, employers should not only provide realistic job previews for employees but also make sure they provide honest performance feedback and expectations. While it may be painful in the short term, providing honest feedback and expectations to employees is a good management practice that may reduce legal problems in the long run.
In the end, organizations can avoid many of the potential problems associated with the HRM legal environment by engaging in sound management practices—management practices that are part of the organization’s strategic initiatives, supported by the HRM function.
SUMMARY
Organizations must be proactive in addressing the challenges presented by the legal environment in
basic goal of EEO regulation is to protect people from unfair or inappropriate discrimination in the workplace. Organizations must ensure that they do not knowingly discriminate or unfairly treat any individuals or groups. Avoiding disparate treatment, sexual harassment, and other forms of
discrimination require diligence on the part of organizations and their HRM function.
The major laws and related regulations that affect EEO include Title VII of the CRA of 1964, EO 11246, EO 11478, and the Equal Pay Act of 1963, the Age Discrimination in Employment Act, the Vocational Rehabilitation Act of 1973, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, the Pregnancy Discrimination Act of 1978, the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, and the Family and Medical Leave Act of 1993. The enforcement of EEO legislation is handled by the EEOC and the OFCCP.
There are a number of organizational practices that if implemented can help organizations avoid and respond to EEO lawsuits while also contributing to increased likelihood of organizational success. HRM personnel bear a particular responsibility in ensuring that their organizations do the right thing when it comes to all of their employees.
REFERENCES
Bureau of National Affairs. 1985. Fire fighters local 1784 v. Stotts (April 14).
Bureau of National Affairs. 1987. High court upholds pregnancy law. Fair Employment Practices (January 22), pp. 7–8.
Bureau of National Affairs. 1988. A wrap-up of state legislation: 1988 anti-bias laws focus on aids.
Fair Employment Practices (January 5), pp. 3–4.
Bureau of National Affairs. 1989. Guidelines on AIDS. Fair Employment Practices (March 30), p.
39.
Cascio, W.F. 1978. Applied psychology in personnel management. Reston, VA: Reston, p. 25.
Casey, J.J. 1999. Developing an effective sexual harassment policy. In G.Z. Cox (ed.), Sexual harassment: Limiting employer liability. Eagan, MN: Oakstone Legal and Business Publishing, pp.
53–62.
Commerce Clearing House. 1988. Federal contractors must file VETS-100 by March 31. Ideas and Trends (February 23), p. 32.
Commerce Clearing House. 1992. ADA training manual for managers and supervisors. Chicago:
Commerce Clearing House.
Disabilities act abused? 1998. USA Today (September 25), pp. 1B, 2B.
Faley, R.H., Kleinman, L.S., and Lengnick-Hall, M.L. 1984. Age discrimination and personnel psychology: A review and synthesis of the legal literature with implications for future research.
Personnel Psychology 37: 327–350.
treatment: Legal and research implications. Personnel Psychology 41: 481–496.
Ledvinka, J., and Scarpello, V.G. 1991. Federal regulation of personnel and human resource management, 2nd ed. Boston: PWS-Kent.
Martinez, M.N. 1994. FMLA—headache or opportunity? HRMagazine (February): 42–45.
McDonnell-Douglas Corp. v. Green, 411 U.S. 972, 1973.
Munchus, G., III. 1992. Check references for safer selection. HRMagazine 37(6): 75–77.
Murphy, B.S., Barlow, W.E., and Hatch, D.D. 1987. Manager’s newsfront: U.S. Supreme Court approves preferential treatment for pregnancy. Personnel Journal 66(3): 18.
Pregnant workers clash with employers over job inflexibility. 1999. Wall Street Journal (February 10), p. B1.
Ritter, D.B., and Turner, R. 1987. AIDS: Employer concerns and options. Labor Law Journal 38(2):
67–83.
Steelworkers v. Weber, 443 U.S. 193, 20 FEP 1, 1979.
Wards Cove Packing v. Antonio, 109 U.S. 2115, 1989.
Washington scorecard. 1994. HR News 13 (March): 4.
This page intentionally left blank.
Chapter 4 Job Analysis
INTRODUCTION
As organizations have increasingly tried to meet the dynamics of an ever changing competitive global world of work they have developed flatter, more agile, and innovative structures and work designs.
These new structures and work designs have led to an increased role for HRM personnel in the actual design and redesign of jobs intended to improve organizational success. HRM personnel now find themselves needing to be prepared to modify job descriptions, job specifications (the qualifications needed to perform a job), and recruitment practices and perhaps to adjust pay scales as well. Job analysis plays an important role in all of these activities.
With an understanding of the nature of HRM and the nature of the legal environment that organizations and their HRM personnel must consider, it is now possible to begin a more focused and detailed analysis of the specific activities and operations of the HRM process itself. This chapter addresses job analysis and its importance in determining the jobs the organization needs to have performed to successfully achieve its strategic objectives. We first discuss the nature of job analysis and why organizations must conduct them. Sources of data for collecting job analysis information is provided next. Then the focus turns to the various methods for analyzing jobs and the decision criteria for determining which methods to use in analyzing jobs. The chapter concludes by highlighting the changing nature of jobs and the future of job analysis in contributing to organizational success.